A federal appeals court in Boston has confirmed a lower court decision that the Defense of Marriage Act is unconstitutional in the way it denies benefits to gay couples by not recognising their marriages.

The US Court of Appeals for the First Circuit upheld a ruling from 2010 that the law withholding the federal benefits of marriage from states which allow their citizens to marry regardless of gender was in conflict with the constitution.

The Defense of Marriage Act denies gay spouses Social Security survivor benefits, the ability to file joint tax returns and health insurance rights enjoyed by straight married couples.

Last week, a district court judge in California became the third federal judge to declare DOMA unconstitutional, but today’s decision is the first time a more senior appellate court has ruled against DOMA.

A federal judge in the state to first declare the section of DOMA which defines marriage at the federal level as a union between a man and a woman, unconstitutional in 2010.

The appeals court affirmed the decision made in the case brought to “contest the right of Congress to undercut the choices made by same-sex couples and by individual states in deciding who can be married to whom”.

In a discussion of DOMA’s rationales, the court side-stepped an argument that straight marriages were beneficial for children, saying: “The evidence as to child rearing by same-sex couples is the subject of controversy, but we need not enter the debate. Whether or not children raised by opposite-sex marriages are on average better served, DOMA cannot preclude same-sex couples in Massachusetts from adopting children or prevent a woman partner from giving birth to a child to be raised by both partners.

“Although the House Report is filled with encomia to heterosexual marriage, DOMA does not increase benefits to opposite-sex couples–whose marriages may in any event be childless, unstable or both–or explain how denying benefits to same-sex couples will reinforce heterosexual marriage. Certainly, the denial will not affect the gender choices of those seeking marriage.

“This is not merely a matter of poor fit of remedy to perceived problem, but a lack of any demonstrated connection between DOMA’s treatment of same-sex couples and its asserted goal of strengthening the bonds and benefits to society of heterosexual marriage.”

Regarding an argument of morality, the judges wrote: “For generations, moral disapproval has been taken as an adequate basis for legislation, although usually in choices made by state legislators to whom general police power is entrusted.

“But, speaking directly of same-sex preferences, [the Supreme Court decision in Texas vs. Lawrence, which struck down the state's sodomy laws] ruled that moral disapproval alone cannot justify legislation discriminating on this basis.

“Moral judgments can hardly be avoided in legislation, but Lawrence and [Romer vs Evans, in which the Supreme Court ruled a Colorado constitutional amendment outlawing the classification of gays as a "protected class" was unconstitutional] have undercut this basis.”

On DOMA’s rationales, the judges concluded: “Many Americans believe that marriage is the union of a man and a woman, and most Americans live in states where that is the law today. One virtue of federalism is that it permits this diversity of governance based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage.

“Under current Supreme Court authority, Congress’ denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.”

The judges ruled, in the decision authored by Michael Boudin, that the mandate should be stayed, saying a Supreme Court hearing was now “highly likely”.

Evan Wolfson, President of Freedom to Marry: “Today’s unanimous decision issued by the First Circuit Court of Appeals is a powerful affirmation that the so-called Defense of Marriage Act is an unconstitutional and unjust law whose days are numbered. This ruling will return the federal government to its historic role of respecting marriages performed in the states, without carving out a ‘gay exception’ that denies thousands of protections.

“As more loving same-sex couples commit their lives to one another in marriage, the harms of this unjust law become more clear – from service members, risking their lives to protect ours, being denied the ability to protect their own families through military medical insurance or survivor benefits to senior citizens having to move out of their homes after their partners of many decades pass on because they cannot access Social Security protections afforded any other legally married couple.”

Massachusetts, Connecticut, New York, Iowa, New Hampshire, Vermont, Maryland, Washington and the District of Columbia have approved equal marriage laws for gay and straight couples.